State of Tennessee v. Eugene David Sanders, Jr.

08/06/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 20, 2018

STATE OF TENNESSEE v. EUGENE DAVID SANDERS, JR.

Appeal from the Criminal Court for Davidson County

No. 2012-C-2804 Mark J. Fishburn, Judge

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No. M2017-01916-CCA-R3-CD

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Defendant, Eugene David Sanders, Jr., appeals from his Davidson County Criminal Court

convictions of aggravated assault and aggravated criminal trespass, for which he received

an effective sentence of fifteen years to serve in the Department of Correction. On

appeal, Defendant contends that: (1) the jury’s verdict was against the weight of the

evidence; (2) the trial court erred by failing to instruct the jury on self-defense; and (3)

the trial court erred by allowing the State to call Defendant’s court-appointed private

investigator as a rebuttal witness. Following a thorough review, we affirm the judgments

of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Kara L. Everett, Carthage, Tennessee (on appeal), and Mark Kovach (at trial), for the

appellant, Eugene David Sanders, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

In September 2012, the Davidson County Grand Jury indicted Defendant for

attempted first degree murder, aggravated burglary, and aggravated assault. The case

proceeded to trial in May 2015 on the charges of aggravated burglary and aggravated

assault after the State entered a nolle prosequi to the charge of attempted first degree

murder.

State’s Case-in-Chief

Jason Haggard testified that he worked as a paramedic with the Nashville Fire

Department in February 2012. On February 1, 2012, Mr. Haggard responded to a

residence on Chestnut Street on an assault call. Upon arrival, Mr. Haggard found the

house was in “disarray,” and he could see pieces of the door jamb on the floor of the front

room. The assault victim was lying on the floor near a couch. Mr. Haggard observed a

large wooden stick on the floor, and based on the victim’s injuries, he believed that the

large wooden stick had been used to hit the victim. When asked to describe the victim’s

condition, Mr. Haggard stated:

[The victim] was laying [sic] on his back and he was not really

responsive when we initially tried to say “[H]ey, are you okay? Are you

awake[?]” just to see if we could get any response out of him at all. He was

breathing really heavily and he had lots of blood covering his face and his

eyes, both of his eyes were noticeably very swollen around, just right

around the orbits there, right around the eye sockets.

He explained that this was a sign of a possible skull fracture or intercranial injury. Mr.

Haggard further testified:

When we were in the house, I don’t remember any sort of response

from him at all. I remember him being sort of just really compliant to the

point of being totally unconscious as we were putting him on the

spineboard. I remember his breathing was really deep, rapid, which is

another indicator of possible head injury or a closed head injury.

Mr. Haggard recalled that the victim had “lots of blood” coming from his nose and

mouth and that he was “critically injured.” Mr. Haggard transported the victim by

ambulance to Vanderbilt Hospital. According to Mr. Haggard, the victim did not regain

consciousness while en route to the hospital. Mr. Haggard stated, “[The victim] had

some movement, but he was not responsive at all, so he didn’t have any sort of

purposeful movement and he wasn’t following commands or acknowledging being talked

to or anything like that.”

Detective Frederick Heiman of the Metro-Nashville Police Department testified

that on February 1, 2012, police dispatch received a call about a fight in which someone

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had been “severely beaten.” Detective Heiman initially responded to Vanderbilt

Hospital, where he saw that the victim was “on a trauma board, had a neck collar and had

been intubated.” The victim was not conscious, and Detective Heiman was informed that

the victim was in critical but stable condition. Medical staff told Detective Heiman that

the victim suffered “a couple of facial fractures” but no brain injury and that the victim

was expected to make a full recovery. Upon determining that he would not be able to

speak to the victim, Detective Heiman went to the residence on Chestnut Street.

Sharon Tilley, a crime scene investigator with the Metro-Nashville Police

Department, testified that she responded to the residence on Chestnut Street on February

2, 2012. She photographed the scene, including the front door of the residence, and noted

that the door frame “appeared to be broken and damaged.” Investigator Tilley stated that

it appeared that the storm door had been “torn off the door frame,” and there were

“gouges in the door.” She also observed a damaged coffee table and a shelf that had been

“displaced.” Investigator Tilley collected a cigarette butt, a blue jersey, a pair of blue

jeans with blood on them, and a piece of wood from the crime scene. She noted that

there was a pair of brown gloves in the pocket of the blue jeans.

Freddie Petway, the victim, testified that, on the night of February 1, 2012, he was

at his residence on Chestnut Street, watching television with his girlfriend, Defendant,

and Defendant’s “girl.” At one point, Mr. Petway told Defendant that Defendant could

not keep “coming and going” out of his house. Mr. Petway explained that Defendant did

not pay him rent; instead, Defendant wanted to “freeload” off of Mr. Petway. During this

conversation, Defendant and his “girl” became angry, and Defendant hit Mr. Petway with

a brick and left the residence. Mr. Petway locked his front door, but Defendant returned

and “bust[ed] the door in” with a brick and a “wooden hammer.” Mr. Petway testified

that Defendant then hit him in the face and in the eye with the hammer and that he lost

consciousness. Mr. Petway stated that he had no memory of what happened after he lost

consciousness until he woke up at Vanderbilt Hospital. He explained that he was in the

hospital and an “old folk[’]s home” for six months after the assault. Mr. Petway testified

that doctors placed a metal plate in the area of his eye and cheekbone. He stated that he

had to be fed through a feeding tube because he could not swallow. Mr. Petway recalled

that his girlfriend was at a nearby church getting some food when Defendant returned to

Mr. Petway’s residence. He testified that it was the fifth time that he had told Defendant

not to come back to his house, but Defendant had “been back everyday, five days in a

row, with the same girl.” Mr. Petway stated that Defendant did not live with him at the

house on Chestnut Street; instead, Defendant was staying “[b]y the store by the projects.”

On cross-examination, Mr. Petway agreed that he had called Defendant and asked

Defendant to bring him some crack cocaine and that he had told Defendant that he would

pay him for the crack cocaine. Mr. Petway testified, however, that Defendant “was too

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late coming, took him all night to come. He had to go get his girl.” Consequently, Mr.

Petway had already obtained crack cocaine from another source. Mr. Petway could not

recall whether Defendant placed a bag of cocaine on the coffee table. Mr. Petway said

that he was not swinging the wooden hammer around or showing it to Defendant before

he locked Defendant out of his home. He explained that he kept the wooden hammer in

order to protect himself from people coming to his door. Mr. Petway did not recall

threatening Defendant with the wooden hammer, and he denied hitting Defendant with

the hammer.

William Stewart testified that, in February 2012, he worked as a detective with the

Metro-Nashville Police Department and was assigned to investigate the assault on Mr.

Petway. Detective Stewart explained that he was originally given the name “Da-Boy” as

the suspect in the assault. Through a search of a database of nicknames, Detective

Stewart determined that “Da-Boy” was a nickname used by Defendant. Detective

Stewart located Defendant and took him into custody. After being advised of his

Miranda rights, Defendant admitted to being at Mr. Petway’s residence on the night of

the assault. Detective Stewart testified:

[Defendant] made comments that he had been called and was asked to bring

some crack cocaine. [Defendant] . . . was told that they had money, so he

went to that location on . . . Chestnut Street. When he got there, there was

[sic] several people there, but no one had any money. [Defendant] got into

an argument with Mr. Petway, a heated argument, words were exchanged.

He made comments that it was raining that day and he had arrived there

with a girl by [the] name of Kiana Johnson, and she had stepped outside on

the front porch during the argument with Mr. Petway. He went out to

check on her or to tell her to “wait, I’ll be out in a minute,” at which point,

and it’s not real clear whether Mr. Petway shoved him out the door or

whether he was standing in the door and Mr. Petway slammed the door and

hit him. According to [Defendant], he was standing in the doorway, Mr.

Petway slammed the door, hit him, knocked him down on the concrete.

[Defendant] said it made him mad and at that point it he just lost it. He said

he kicked the door in, went in, struggled with Mr. Petway, he said, “I

swung at Mr. Petway, Mr. Petway swung at me once and missed. I

wrestled him to the ground and I hit him in the face or punched him in the

face two or three times,” he said, “And then I got up and left.”

Detective Stewart explained that, although the interview was not recorded, he took

notes of his conversation with Defendant and then reduced his notes to a written report.

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About a week later, Detective Stewart located Mr. Petway’s girlfriend, Angela

Stewart-Green, and interviewed her about the incident. Detective Stewart made several

attempts to speak to Mr. Petway, but the detective recalled:

Every time that I checked or went by and saw him, he was either

unconscious or he was intubated where he could not speak. At one point he

could speak, but it just didn’t seem like anything I asked him was

registering with him at all. He just wasn’t coherent.

On cross-examination, Detective Stewart agreed that Defendant said that Mr.

Petway was swinging a wooden stick or mop handle around earlier in the night and spit in

Defendant’s face before Mr. Petway kicked Defendant out of his residence. He recalled

that Defendant showed remorse when told about Mr. Petway’s condition, and Defendant

claimed that it had not been his intent to severely injure Mr. Petway.

Defendant’s Proof

Defendant testified that, on February 1, 2012, he was at a convenience store with

Kiana Johnson when he received a phone call from Mr. Petway, who said that “they had

some money at the house” and asked Defendant to bring him $50 worth of crack cocaine.

Defendant testified, “I told Mr. Petway that I didn’t have any drugs at that time, he said,

‘Well you need to get you some now because there’s plenty of money up here.’ So I said,

‘I’ll snatch me some and I’ll probably come on the way.’” Defendant obtained some

cocaine, and he and Ms. Johnson went to the residence on Chestnut Street. Defendant

testified that the door to the residence was open when he arrived and that there were five

or six people in the residence. Defendant claimed that he lived in the Chestnut Street

residence; he kept clothing there and had a key to the residence. He explained that, when

he arrived at the house with the cocaine, Mr. Petway said, “Let me get something.”

Defendant responded, “Let you get something? . . . [W]here the money at [sic]?” Mr.

Petway then informed Defendant that “nobody got no [sic] money.” Defendant testified

that Mr. Petway said, “B****, I’m not paying you nothing [sic] [,]” and he ordered

Defendant to get out of his house while swinging a wooden stick around. Ms. Johnson,

who was already getting high, said, “Y’all blowing my high, I gotta go[,]” and she

stepped out onto the front porch. Defendant said that he stepped out the front door to

check on Ms. Johnson. According to Defendant, while he was standing in the doorway,

Mr. Petway “hit [him] with the stick” and pushed Defendant out of the doorway, causing

Defendant to slip and fall. Defendant explained that he was hurt in the fall and responded

“against [his] better judgment.” Defendant admitted that he “forced [his] way back in”

Mr. Petway’s residence. He stated, “When I went back in the house Mr. Petway hit me,

we was fighting.” He said that Mr. Petway “still had the stick in his hand, he was still

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swinging the stick and we got into it, it was just a -- just a fight, I got the better end of the

stick, he lost and got the short end of the stick[.]”

During a jury-out hearing following Defendant’s direct examination, the following

colloquy occurred:

THE COURT: If I charge the jury on self-defense, then the law

allows the State to get into your prior aggravated assaults.

[DEFENDANT]: Yes, sir.

THE COURT: Because one of the things that the jury would have to

determine is who the first aggressor was[.]?

[DEFENDANT]: Yes, sir.

THE COURT: Also there will be an issue that, this being in his

home, and I don’t know if I have the most updated one, if I were to charge

self-defense, not only would the State be allowed to introduce your prior

aggravated assaults, since this happened at his home, the jury would also be

advised that his swinging the club at you, there’s a presumption that he was

doing so to protect himself because he was presumed to have held a

reasonable fear of imminent peril of death or serious bodily injury, which

would justify him doing what he did, if the jury finds you unlawfully

entered the premises.

So, my point is, since this just came up in your testimony, I had no

idea about the self-defense possibility, I thought it best that we stop and you

and your attorney talk as to whether or not you want to pursue self-defense

because, to be honest, it appears to me that the evidence is justified maybe

that charge being given, I just don’t know whether or not you want it given,

under the circumstances, and I think you and your attorney need to discuss

that before we go any further with the General’s cross-examination . . . so I

can make a determination as to whether these aggravated assaults come in

or stay out, as I’ve already ruled. If we’re going down a new path, I need to

know now, so I think you need to make a conscious, intelligent, voluntary

decision as to whether or not you want to put self-defense before this jury

and also your prior history with aggravated assaults and this being in his

house where the law says it’s all right for him to defend himself if someone

forces their way into his house. I just want to you understand that and

make a decision before we go any further. So we’re going to take a few

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minutes, let you and [defense counsel] discuss that issue, I just need to

know, if you say you want self-defense, I’m telling you the way things are

going to go if that’s what you want. If you don’t want it, we’ll proceed as

we are, nothing else is brought up about your prior record and your prior

convictions on agg[ravated] assault or anything else.

Following a recess, defense counsel announced, “Your Honor, we would like to go

with the self-defense strategy[.]” The trial court replied:

I am wondering even if self-defense should even be charged. When

you look at the instruction it says the threat or use of force against another

by the defendant is not justified if the defendant consented to the exact

force used or attempted by the other individual. I mean, he forced his way

in the door and he sees him swinging this stick and chooses to go forward

with it anyway.

....

[Defendant] placed himself in that situation. He consented to go

back in by forcing his way in the door . . . and proceeded. He saw what the

guy was doing and proceeded to get into the struggle with him anyway.

....

I just don’t think that under the facts of this case from what I’ve

heard from [D]efendant, in looking at it in light most favorable to him, that

it really raises a legitimate self-defense argument. He forced his way back

into a situation that he knew was already volatile.

....

There is no reason to have to concern yourself with self-defense if

you don’t reenter the premises that you were just forced out of. I’m not

going to charge self-defense.

On cross-examination, Defendant acknowledged that he had four prior convictions

for theft. He further acknowledged that he was frustrated and upset with Mr. Petway

after he learned that Mr. Petway could not pay for the drugs. Defendant stated that Mr.

Petway “already owed [him] $250 before he called me for the $50 worth of crack

cocaine.” He explained that, after Mr. Petway told him to leave the residence, Mr.

Petway hit him with the wooden stick and pushed him out the door. Defendant admitted

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that he was mad at Mr. Petway when he forced the door back open and forced his way

back into the house. He stated that Mr. Petway “never had the chance to hit [him] again

with that stick” but that they were “fighting.” He agreed that he hit Mr. Petway in the

face with his fist but denied ever hitting Mr. Petway with the wooden stick.

Angela Stewart-Green testified for Defendant. She stated that, on the night of the

incident, Mr. Petway called her and asked her to “bring him some drugs.” Ms. Stewart-

Green stayed at the residence and “continued to . . . get high,” and she recalled that

Defendant arrived about thirty minutes later. Defendant took off his socks and shoes

because he had walked in the rain to Mr. Petway’s residence. She said that Mr. Petway

began beating on the walls with a wooden stick, causing Ms. Johnson to leave the

residence. Ms. Stewart-Green recalled that Defendant stood in the doorway to tell Ms.

Johnson to come back inside, and then Mr. Petway “slammed the door on him.”

Defendant knocked on the door for Mr. Petway to let him in, but when Mr. Petway did

not comply, Defendant “kicked the door in.” Ms. Stewart-Green testified that, after

Defendant kicked in the door, “they had started arguing and then [Defendant] started to

put his shoes and socks and things back on. As he was bending down I recall Mr. Petway

hitting him with stick.” She stated that Defendant then hit Mr. Petway three or four

times. Defendant then continued to put on his socks and shoes and left the residence.

Ms. Stewart-Green called 911 because Mr. Petway was bleeding profusely and did not

appear to be breathing.

On cross-examination, Ms. Stewart-Green acknowledged that she had been

smoking crack cocaine on the night of the offense and agreed that her memory of that

night was “somewhat spotty.” She agreed that Detective Stewart interviewed her on

February 12, 2012, and that she did not tell the detective that Mr. Petway hit Defendant

with the wooden stick. She told Detective Stewart that Defendant was hit by the door

and knocked down and that this made Defendant angry. Ms. Stewart-Green also told

Detective Stewart that, after Defendant kicked in the door, he “jumped in [Mr. Petway’s]

face” and hit Mr. Petway. She recalled, “[W]hen [Mr. Petway] tried to hit back [Mr.

Petway] fell down on the floor and [Defendant] started beating him.” Ms. Stewart-Green

told Detective Stewart that Defendant was hitting Mr. Petway in the face, and she

attempted to stop Defendant. However, Ms. Stewart-Green testified that some of the

things she told Detective Stewart were not true and stated that her memory was better at

the time of trial. She said that she did not recall talking to a defense investigator about

the case in 2014. She denied telling the defense investigator that Defendant took the

wooden stick from Mr. Petway and hit him in the face and beat him with his fist. Ms.

Stewart-Green testified that Defendant did not live at Mr. Petway’s residence, but he

would “crash out there sometimes.”

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State’s Rebuttal Proof

Prior to the State calling its rebuttal witnesses, the following colloquy took place:

[DEFENSE COUNSEL]: Then Mr. Wells is coming with -- I

contacted him, he’s on his way.

THE COURT: Is he going to testify too?

[DEFENSE COUNSEL]: I don’t know if the State intends to call

him as a rebuttal witness, I think they may.

[THE STATE]: I think that he might be a witness as it relates to

impeachment.

THE COURT: For the State?

[THE STATE]: Uh-huh (affirmative).

THE COURT: His private investigator?

[THE STATE]: Uh-huh (affirmative).

THE COURT: The [D]efendant’s private investigator?

[THE STATE]: That is correct, Your Honor, that’s one of the

reasons that I’ve been having a moment processing. It’s an odd situation,

that’s what I’m -- I’m not exactly sure what all the ramifications of that are.

[DEFENSE COUNSEL]: And Your Honor, if I may have a moment

to speak with [Defendant] in the back real quick?

THE COURT: Yea, just trying to process this mentally, how this

works.

(Whereupon, [defense counsel] and [Defendant] stepped into the

back.)

THE COURT: I’m just trying to wrap my head around the State

calling the [D]efendant’s private investigator. Tell him to come in here.

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(Whereupon, Mr. Patrick Wells entered the courtroom.)

THE COURT: I don’t want you to answer this yet, Mr. Wells, but I

do at some point in time, I’ve just been advised that you may be called as a

rebuttal witness by the State.

MR. WELLS: Yes, sir.

THE COURT: I’m just trying to wrap my head around the ethics and

propriety of that type of thing happening. I don’t know if there’s, from

your standpoint as a private investigator, if your code of conduct allows

you to basically end up being an adverse witness to your own client. Just

never in my life had this come up before, so. Seems to me it’s work

product.

[THE STATE]: It’s Jencks material. He has written notes from his

interview with the witness, which –

THE COURT: I haven’t looked at 26.2 in so long because y’all have

open-file discovery, it’s never applicable anymore.

(Whereupon, [defense counsel] and [Defendant] reconvened into the

courtroom for the following proceedings.)

THE COURT: See if we even get to that point. There doesn’t

appear to be anything in 26.2 that exempts the statement being turned over .

...

The State called Patrick Wells as a rebuttal witness without objection from

Defendant. Mr. Wells testified that he was a private investigator for the defense and that

he had interviewed several witnesses on Defendant’s behalf in 2014. Mr. Wells

explained that he attempted to contact Ms. Stewart-Green at several addresses and was

unsuccessful. He then received a phone call from someone who identified herself as Ms.

Stewart-Green. Ms. Stewart-Green spoke to Mr. Wells about the assault on Mr. Petway,

telling him specific details about the offense. Following his conversation with Ms.

Stewart-Green, Mr. Wells prepared a written report. Mr. Wells identified a copy of his

report and read the following from the report:

At some point [Defendant] retrieved the mop handle that Mr. Petway

had previously had and started assaulting Mr. Petway. Mr. Petway was

begging [Defendant] to stop beating him with the mop handle and with his

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fist. Mr. Petway started bleeding profusely from the mouth and head area.

Ms. Stewart[-Green] . . . asked [Defendant] to quit, he eventually did and

left the area. Everyone left the area at that point.

On cross-examination, Mr. Wells explained that his interview with Ms. Stewart-

Green was conducted over the phone. He stated that, in his experience, witnesses often

say things to him during interviews that are not true.

The State next recalled Detective Stewart, who testified that when he interviewed

Defendant he did not see any injuries to Defendant’s head. Detective Stewart said that he

did not physically check Defendant’s head but that he sat and spoke to Defendant for

thirty minutes.

Following deliberations, the jury found Defendant guilty of aggravated assault and

aggravated criminal trespass, as a lesser-included offense of aggravated burglary. At a

subsequent sentencing hearing, the trial court found that Defendant was a career offender

and sentenced Defendant to concurrent terms of fifteen years at sixty-percent for

aggravated assault and eleven months and twenty-nine days for aggravated criminal

trespass. Defendant’s judgments of conviction were entered on June 25, 2015.

Defense counsel did not file a timely motion for new trial. Defendant, pro se, filed

an untimely notice of appeal. Thereafter, this court issued a show cause order, directing

defense counsel to explain why Defendant’s appeal should proceed. In response, defense

counsel informed this court that Defendant had told him that he did not wish to proceed

with an appeal. The record, however, did not reflect that defense counsel obtained a

written waiver of appeal or moved to withdraw from further representation. In his

response, defense counsel further explained that Defendant now wanted to proceed with

an appeal, and he asked permission to pursue a delayed motion for new trial in the trial

court. On November 3, 2015, this court dismissed Defendant’s pro se notice of appeal

without prejudice so that Defendant could file a motion for new trial and pursue an

appeal “in accordance with the applicable rules.”

On December 2, 2016, Defendant filed a petition for post-conviction relief,

requesting a delayed direct appeal. The post-conviction court found that Defendant’s

counsel was ineffective for failing to file a timely motion for new trial. Accordingly, the

post-conviction court entered an order on June 26, 2017, staying post-conviction

proceedings and allowing Defendant to pursue a delayed direct appeal. Defendant then

filed a timely motion for new trial and amended motion for new trial.

At a hearing on the motion for new trial, the trial court made the following

comment about the self-defense jury instruction:

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I did not charge self-defense jury instruction because the evidence

was that [Defendant] kicked in the door and the injuries caused occurred

after the kicking in of the door, self-defense requires that you be in a place

that you lawfully have a right to be, and that you’re not committing some

type of illegal act and obviously the jury found that he had committed an

illegal act, at least by trespassing.

Regarding Mr. Wells’s testimony, the State clarified that it had originally

subpoenaed Ms. Stewart-Green, but when she arrived for court, she gave a statement

different than any other statement she had given to police. The State immediately

notified defense counsel about Ms. Stewart-Green’s differing statements, and they

discussed whether either party intended to call her as a witness. The State explained that

it had an agreement with defense counsel to share witness statements and that defense

counsel had shared a report from Mr. Wells containing Ms. Stewart-Green’s statement to

him.1 The State called Mr. Wells as a rebuttal witness to provide proof of Ms. Stewart-

Green’s prior inconsistent statement. The trial court found that Defendant had waived

any privilege he had with the investigator and denied the motion for new trial. This

timely appeal follows.

Analysis

1. Sufficiency of the evidence

Defendant first contends that the jury’s verdict, finding Defendant guilty of

aggravated assault, was contrary to the weight of the evidence.2 He asserts that the State

offered “no proof of [Defendant’s] intent or knowledge that his actions would result in

serious bodily injury[.]” The State responds that the evidence was sufficient to support

the jury’s conclusion that Defendant was guilty of aggravated assault beyond a

reasonable doubt.

Rule 33(d) of the Tennessee Rules of Criminal Procedure states, “The trial court

may grant a new trial following a verdict of guilty if it disagrees with the jury about the

weight of the evidence.” This rule is the modern equivalent of the “thirteenth juror rule”

and requires the trial court to weigh the evidence and grant a new trial “if the evidence

preponderates against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958

1

In response to the State’s assertions, post-conviction counsel acknowledged that the report from

Mr. Wells had been provided to the State, apparently by defense counsel.

2

In his brief, Defendant does not challenge the sufficiency of the evidence as it relates to his

conviction for aggravated criminal trespass.

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(Tenn. Crim. App. 1996). Our supreme court has stated that this rule “imposes upon a

trial court judge the mandatory duty to serve as the thirteenth juror in every criminal

case[ ] and that approval by the trial judge of the jury’s verdict as the thirteenth juror is a

necessary prerequisite to imposition of a valid judgment.” State v. Carter, 896 S.W.2d

119, 122 (Tenn. 1995). When a trial judge overrules a motion for new trial, absent any

evidence that the trial court expressed dissatisfaction or disagreement with the weight of

the evidence or the verdict, this court presumes that the trial judge has served as the

thirteenth juror and approved the jury’s verdict. Id. Once the trial court fulfills its duty

as the thirteenth juror and imposes a judgment, appellate review is limited to determining

the sufficiency of the evidence. State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995)

(citing State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993)).

Here, the record reflects that the trial judge approved the jury’s verdict and

fulfilled his duty as the thirteenth juror. Accordingly, we must determine whether the

evidence presented at trial was sufficient to support Defendant’s conviction for

aggravated assault.

Our standard of review for a sufficiency of the evidence challenge is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This

court will not reweigh the evidence. Id. Our standard of review “is the same whether the

conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). The defendant bears the burden of proving why the evidence was

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221

S.W.3d 514, 521 (Tenn. 2007).

As relevant here, “[a] person commits aggravated assault who . . . [i]ntentionally

or knowingly commits an assault as defined in § 39-13-101, and . . . causes serious bodily

injury to another[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A)(i) (2012). “A person

commits assault who: (1) [i]ntentionally, knowingly, or recklessly causes bodily injury to

another; (2) [i]ntentionally or knowingly causes another to reasonably fear imminent

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bodily injury; or (3) [i]ntentionally or knowingly causes physical contact with another

and a reasonable person would regard the contact as extremely offense or provocative.”

Tenn. Code Ann. § 39-13-101(a)(1)-(3) (2012). “Serious bodily injury” is “bodily injury

that involves: (A) [a] substantial risk of death; (B) [p]rotracted unconsciousness; (C)

[e]xtreme physical pain; (D) [p]rotracted or obvious disfigurement; (E) [p]rotracted loss

or substantial impairment of a function of a bodily member, organ or mental faculty; or

(F) [a] broken bone of a child who is eight (8) years of age or less[.]” Tenn. Code Ann. §

39-11-106(34) (2012). “‘Bodily injury’ includes a cut, abrasion, bruise, burn or

disfigurement, and physical pain or temporary illness or impairment of the function of a

bodily member, organ, or mental faculty[.]” Tenn. Code Ann. § 39-11-106(2) (2012).

When viewed in the light most favorable to the State, the evidence is sufficient to

support Defendant’s conviction for aggravated assault. Mr. Petway ordered Defendant

out of his residence and locked his front door. Defendant then returned and “bust[ed] the

door in.” Defendant immediately began hitting Mr. Petway in the face and in the eye

multiple times with a wooden stick, knocking out Mr. Petway. Mr. Petway appeared to

be unconscious when the paramedics arrived, and he had to be transported to Vanderbilt

Hospital. Mr. Petway testified that he had no memory of what happened after he lost

consciousness but that he later woke up in the hospital. He explained that he was in the

hospital and an “old folks home” for six months after the assault. He testified that

doctors placed a metal plate in the area of his eye and cheekbone due to fractures in his

face and that he had to be fed through a feeding tube because he could not swallow.

Defendant forced his way into Mr. Petway’s residence after he had been locked out, and

he immediately began hitting Mr. Petway. The evidence is more than sufficient to

support Defendant’s conviction for aggravated assault involving serious bodily injury.

Defendant asserts that the evidence does not support his conviction because there

was no proof that he intended to cause serious bodily injury or knew that his actions

would result in serious bodily injury; however, this court has previously held that, under

the plain language of our aggravated assault statute, “it is clear the mens rea element of

intentionally and knowingly is limited in application . . . to the commission of assault as

defined in section 39-13-101.” State v. Jones, 341 S.W.3d 318, 321 (Tenn. Crim. App.

2010). The mens rea element does not apply to the result of the assault, i.e., seriously

bodily injury. Id. at 321-22. Thus, Defendant’s argument is without merit, and he is not

entitled to relief on this issue.

2. Self-defense instruction

Defendant also contends that the trial court erred by failing to instruct the jury on

self-defense. Defendant argues that the trial court foreclosed Defendant’s reliance on a

theory of self-defense by “making itself the trier of fact,” determining that Defendant

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“forced his way back into the residence” and “placed himself in that situation.”3 The

State responds that because the issue of self-defense was not fairly raised by the proof,

the trial court properly declined to provide a self-defense instruction to the jury.

Whether the jury instructions were proper is a mixed question of law and fact,

which this court reviews de novo with no presumption of correctness. State v. Smiley, 38

S.W.3d 521, 524 (Tenn. 2001). Under Tennessee law, a trial court has a duty to provide

“a complete charge of the law applicable to the facts of the case.” State v. James, 315

S.W.3d 440, 446 (Tenn. 2010) (quoting State v. Harbison, 704 S.W.2d 314, 319 (Tenn.

1986)); see also Tenn. R. Crim. P. 30(d)(2). This obligation “extends to general

defenses, such as self-defense, defense of another, or defense of a habitation.” State v.

Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013) (footnote omitted).

When evidence adequately supporting self-defense is admitted at trial, the

question of whether an individual acted in self-defense is a factual question for the jury.

See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). However, before a trial

court may submit a defense question to a jury, the proof must fairly raise an issue as to

the existence of that defense, and the defendant has the burden of introducing such proof.

Tenn. Code Ann. § 39-11-203(c), Sentencing Comm. Cmnts. “The quantum of proof

necessary to fairly raise a general defense is less than that required to establish a

proposition by a preponderance of the evidence.” Hawkins, 406 S.W.3d at 129. In

determining whether a general defense has been fairly raised by the proof, a trial court

must consider the evidence in the light most favorable to the defendant and draw all

reasonable inferences in the defendant’s favor. Id. If the evidence fairly raises the issue

of self-defense, the trial court is required to submit the instruction to the jury. Id.

Tennessee’s self-defense statute provides, in pertinent part:

(b)(1) Notwithstanding § 39-17-1322, a person who is not engaged

in unlawful activity and is in a place where the person has a right to be has

no duty to retreat before threatening or using force against another person

when and to the degree the person reasonably believes the force is

immediately necessary to protect against the other’s use or attempted use of

unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in

unlawful activity and is in a place where the person has a right to be has no

3

In his brief, Defendant asserts that the jury should have been instructed on self-defense but fails

to explain how the issue was raised by the proof. Because Defendant failed to make a specific argument

in this respect, our analysis will, necessarily, focus on the propriety of the trial court’s ruling and its

reasoning.

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duty to retreat before threatening or using force intended or likely to cause

death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an

imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death

or serious bodily injury is real, or honestly believed to be real

at the time; and

(C) The belief of danger is founded upon reasonable

grounds.

Tenn. Code Ann. § 39-11-611(b)(1)-(2). Importantly, the threat or use of force against

another is not justified “[i]f the person using force consented to the exact force used or

attempted by the other individual[.]” Tenn. Code Ann. § 39-11-611(e)(1); see also

Hawkins, 406 S.W.3d at 128 (stating that the defense of self-defense is generally not

available if the defendant “consented to the danger”).

In this case, the trial court found that self-defense was not fairly raised by the

proof and denied Defendant’s request for a self-defense instruction. The trial court

reasoned:

When you look at the [self-defense] instruction it says the threat or

use of force against another by the defendant is not justified if the

defendant consented to the exact force used or attempted by the other

individual. I mean, he forced his way in the door and he sees him swinging

this stick and chooses to go forward with it anyway.

....

[Defendant] placed himself in that situation. He consented to go

back in by forcing his way in the door . . . and proceeded. He saw what the

guy was doing and proceeded to get into the struggle with him anyway.

....

I just don’t think that under the facts of this case from what I’ve

heard from the [D]efendant, in looking at it in light most favorable to him,

that it really raises a legitimate self-defense argument. He forced his way

back into a situation that he knew was already volatile.

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During his testimony, Defendant stated that Mr. Petway told him to leave the

residence, hit him with a wooden stick, pushed him out the door, and locked it. This

angered Defendant, and he kicked in Mr. Petway’s door. Defendant said that Mr. Petway

“still had the stick in his hand, he was still swinging the stick and we got into it, it was

just a -- just a fight, I got the better end of the stick, he lost and got the short end of the

stick[.]” He stated, “When I went back in the house Mr. Petway hit me, we was [sic]

fighting.” Defendant stated that Mr. Petway “never had the chance to hit [him] again

with that stick[,]” but they were fist fighting. The trial court’s finding that Defendant

consented to Mr. Petway’s use of force when he re-entered the residence is clearly

supported by Defendant’s own testimony. As previously noted, the defense of self-

defense is generally not available if the defendant “consented to the danger.” Id.; see

also Tenn. Code Ann. § 39-11-611(e)(1). Because Defendant did not introduce evidence

sufficient to “fairly raise” an issue as to the existence of self-defense, he is not entitled to

relief on based on this claim.

3. State’s rebuttal witness

Defendant contends that the trial court erred by allowing the State to call Mr.

Wells as a rebuttal witness because his communications with defense counsel were

privileged under Tennessee Code Annotated section 24-1-209. Additionally, Defendant

asserts that Mr. Wells’s report containing Ms. Stewart-Green’s statement was specifically

prohibited from reciprocal discovery pursuant to Rule 16(b)(2) of the Tennessee Rules of

Criminal Procedure. The State responds that the trial court properly allowed the State to

call Mr. Wells as a rebuttal witness.

Investigative privilege

Defendant is correct that Mr. Wells’s communications with defense counsel were

privileged under Tennessee law. Tennessee Code Annotated section 24-1-209 states that

“[c]ommunications between an attorney and a private detective or investigator hired by

such attorney, while acting in their respective capacities shall be privileged

communications.” Tenn. Code Ann. § 24-1-209. In denying Defendant’s motion for new

trial, however, the trial court specifically found that Defendant waived this privilege by

sharing with the State the report from Mr. Wells containing Ms. Stewart-Green’s prior

statement. Defendant cannot now raise a claim of investigative privilege when he

voluntarily provided the State with the report from Mr. Wells. Moreover, Defendant did

not object to the State’s calling Mr. Wells to testify as a rebuttal witness. Because

Defendant failed to raise a contemporaneous objection, we conclude this issue is waived.

State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008) (concluding that the failure

to make a contemporaneous objection constitutes waiver of an issue on appeal); Tenn. R.

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App. P. 36(a) (stating that “[n]othing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error”).

Rule 16 discovery

Moreover, we reject Defendant’s contention that Rule 16(b)(2) of the Tennessee

Rules of Criminal Procedure prohibited defense counsel from turning over Mr. Wells’s

report to the State as reciprocal discovery. Rule 16(b)(2) provides:

(2) Information Not Subject to Disclosure. Except as to scientific or

medical reports, this subdivision does not authorize the discovery or

inspection of:

(A) reports, memoranda, or other internal defense

documents made by the defendant or the defendant’s

attorneys or agents in connection with the investigation or

defense of the case; or

(B) a statement made by the defendant to the

defendant’s agents or attorneys or statements by actual or

prospective state or defense witnesses made to the defendant

or the defendant’s agents or attorneys.

Tenn. R. Crim. P. 16(b)(2) (2015). The rule does not require a defendant to turn over

statements made by potential defense witnesses to the defendant or the defendant’s agent

during pretrial discovery; however, it does not prevent a defendant from doing so. See

Tenn. R. Crim. P. 16, Advisory Comm’n Cmts (“The voluntary disclosure of evidence

not within the ambit of this rule is encouraged by the commission.”). Rule 16(b)(2) did

not prevent defense counsel from voluntarily turning over Ms. Stewart-Green’s statement

to Mr. Wells during pretrial discovery.4 This issue is without merit.

4

As noted by the State in its brief, it is unclear from the record whether Mr. Wells’s report

contained Jencks material, which would have been subject to mandatory disclosure under Tennessee Rule

of Criminal Procedure 26.2. See Tenn. R. Crim. P. 26.2.

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Conclusion

For the aforementioned reasons, the judgments of the trial court are affirmed.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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